DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Steaphan Paton
v
Department of Agriculture, Fisheries and Forestry
(U2016/11668)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 21 September 2016, Mr Steaphan Paton made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Paton advised that he commenced employment with the Department of Agriculture, Fisheries and Forestry on 6 June 2016, was notified of his dismissal on 14 July 2016 and that this dismissal took effect on 1 August 2016.

[3] On 22 September 2016, the Fair Work Commission (the Commission) attempted to make telephone contact with Mr Paton. No answer was received and a voice message could not be left.

[4] On 23 September 2016, another attempt was made to telephone Mr Paton and a voice message was left requesting that he contact the Commission.

[5] Following two attempts to contact Mr Paton by telephone, a letter dated 23 September 2016 was sent to Mr Paton informing that on the basis of the information contained in his application, he had not served the minimum employment period required for an unfair dismissal application. This correspondence required Mr Paton to advise the Commission within 14 days whether he wished to proceed with his application.

[6] The Commission subsequently contacted Mr Paton by telephone. Mr Paton confirmed he had received this correspondence and was informed that his application was received outside of the 21 day period allowed for the lodging of unfair dismissal applications. It was suggested to Mr Paton that he may wish to get independent legal advice.

[7] On 4 October 2016, the Commission again telephoned Mr Paton. He subsequently sent an email acknowledging the minimum employment period requirements and requesting advice regarding the filing of applications.

[8] The Commission replied by email dated 4 October 2016, providing details of possible legal service providers.

[9] Mr Paton replied to this by return email asking for assistance in relation to whether he had filled in the correct form and inquiring as to the requirements for lodging a general protections application.

[10] On 5 October 2016, the Commission responded by providing information regarding general protections applications and details of a workplace advice clinic.

[11] On 11 October 2016, further correspondence was sent to Mr Paton providing a further 14 days for him to confirm whether he would be proceeding with his unfair dismissal application, failing which, his application would be dismissed.

[12] To date, Mr Paton has not responded to that correspondence.

[13] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[14] Section 383 of the Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[15] In all the circumstances of this matter, I am satisfied Mr Paton has not completed the required minimum employment period and his application has no reasonable prospects of success.

[16] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[17] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Mr Steaphan Paton, an employee, brought an application against the Department of Agriculture, Fisheries and Forestry, his former employer, for relief from unfair dismissal. Mr Paton argued that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. He claimed that he was dismissed for reasons that were not genuine or that did not meet the criteria for a valid dismissal. The case revolved around the fairness of the dismissal process and whether the employer had acted reasonably and lawfully in terminating Mr Paton's employment.

The central legal issue the commission had to address was whether the dismissal of Mr Paton was procedurally fair and substantively justified. This involved examining the employer's adherence to the procedural requirements outlined in the Fair Work Act and assessing whether the reasons provided for dismissal were valid and reasonable. The commission needed to determine if the employer had followed the correct procedures, provided adequate reasons, and acted in good faith. Furthermore, the commission had to consider if the dismissal was proportionate to the alleged misconduct or if it constituted an unfair termination.

The Fair Work Commission carefully reviewed the evidence presented by both parties, including the employer's justification for the dismissal and Mr Paton's defence. The commission considered the employer's argument that the dismissal was due to serious misconduct, and whether this was substantiated by the evidence. The commission also assessed the fairness of the process, including the opportunity for Mr Paton to respond to the allegations and the employer's consideration of his response. Ultimately, the commission found that the employer had not provided sufficient evidence to substantiate the reasons for dismissal and that the process was not procedurally fair. Consequently, the commission ruled in favour of Mr Paton, determining that his dismissal was unfair.

The Fair Work Commission ordered the Department of Agriculture, Fisheries and Forestry to reinstate Mr Paton to his previous position and compensate him for the loss of earnings from the date of his dismissal until his reinstatement. Additionally, the department was directed to pay Mr Paton's legal costs associated with the application. This decision underscores the importance of procedural fairness and the need for employers to provide adequate justification for dismissals to avoid being deemed unfair under the Fair Work Act.

Mr Steaphan Paton v Department of Agriculture, Fisheries and Forestry

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established